62 W. Va. 497 | W. Va. | 1907
H. Preston Thompson and others obtained, in the circuit court of Monroe county, a decree, requiring, from some of the heirs at law of Levi Jones, deceased, the release of a vendor’s lien on a tract of 103 acres of land, conveyed to Thompson by Jones by a deed dated July 21, 1879,- in fulfillment of a prior contract of sale, for and in consideration of the sum of $250.00, of which $25.00 was paid in cash and for the residue of which .Thompson had executed his three promissory notes for $25 ..00, $100.00 and $100.00, to become due, respectively, on the first days of October, 1878, 1879 and 1880; from which decree the defendants below have appealed.
Plaintiffs rely upon long lapse of time, as raising a presumption of payment, and the defendants resist this by production of the notes, claiming them to have been found ■among the papers of the decedent and denying payment, .and by averment of their tender years at the time of their father’s death, and their ignorance of the non-paj^ment of the .notes.
Owing to the failure of the plaintiffs to make the administrator of the decedent a party, the decree will have to be reversed, without reference to the merits of • the cause. As the administrator is the legal representative of the personal estate, the legal title thereof is in him; and the allegation of payment is the assertion of a right against him. Under certain circumstances, distributees may sue a creditor of the estate in equity, as in the case of collusion between the personal representative and creditor, and refusal of the former to sue. Matheny v. Ferguson, 55 W. Va. 656; Wilson v. Straight, 46 W. Va. 651; Poling v. Huffman, 39 W. Va. 320; Tabb v. Cabell, 17 Grat. 160. But this case is not within the exception. The distributees here are defendants, making no complaint of any dereliction on the part of the administrator, and the exception presupposes the appointment of a personal representative and dereliction on his part while this bill does not. It is argued that a decree will not always be reversed for the want of proper parties, but
That the administrator is a necessary party when the bill alleges payment of money due the decedent, as the very ground on which relief is sought, admits of no doubt. Hill v. Proctor, 10 W. Va. 59; Nichols v. Nichols, 8 W. Va. 174; Caldwell v. Prindle's Admr., 11 W. Va. 307. The defect of
For the error aforesaid, the decree will be reversed and the canse remanded, with leave to the plaintiffs to amend, by making the administrator of Levi Jones, deceased, a party defendant.
Heversed. liemanded.